throbber
FILED: APPELLATE DIVISION - 2ND DEPT 10/23/2023 07:50 PM
`NYSCEF DOC. NO. 12
`RECEIVED NYSCEF: 10/24/2023
`To Be Argued By:
`DONNA H. CLANCY
`Time Requested: 15 Minutes
`
`2023-06095
`
`New York Supreme Court
`
`APPELLATE DIVISION—SECOND DEPARTMENT
`
`d
`
`
`
`JOHN DOE,
`
`—against—
`
`Plaintiff-Respondent,
`
`DOCKET NO.
`2023-06095
`
`MESIVTHA, INC. a/k/a MESIVTA, INC., a/k/a TORAH HIGH SCHOOL OF LONG
`BEACH d/b/a MESIVTA OF LONG BEACH, RABBI MORDECHAI RESPLER, RABBI
`YERUCHOM PITTER, DAVID SUSSMAN, ARI SUSSMAN, ABC CORPS NOS. 1 – 10,
`Said names being unknown and fictitious, and ROBERT ROES NOS. 1 – 10, said
`names being unknown and fictitious,
`
`DAVID DOE,
`
`Defendants.
`
`Non-Party Appellant.
`
`BRIEF FOR PLAINTIFF-RESPONDENT
`
`DONNA H. CLANCY
`THE CLANCY LAW FIRM, P.C.
`40 Wall Street, 61st Floor
`New York, New York 10005
`(212) 747-1744
`dhc@dhclancylaw.com
`
`Attorneys for Plaintiff-Respondent
`
`Kings County Clerk’s Index No. 520624/21
`
`

`

`
`
`TABLE OF CONTENTS
`
`PAGE
`TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
`PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
`COUNTER-STATEMENTS OF QUESTIONS PRESENTED . . . . . . . . . . . . . . . . 3
`COUNTER-STATEMENTS OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
`STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
`ARGUMENT AND AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
`I.
`THE LOWER COURT DID NOT ERR WHEN IT
`REFUSED TO DISMISS THE CASE BASED ON
`SUSSMAN’S UNSUBSTANTIATED CLAIM THAT HE
`WAS NOT TIMELY SERVED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
`THE LOWER COURT DID NOT ERR WHEN IT
`REFUSED TO DISMISS THE CASE BASED ON
`SUSSMAN’S ARGUMENT THAT IT DID NOT HAVE
`PERSONAL JURISDICTION OVER HIM BECAUSE OF
`PLAINTIFF’S USE OF A PSEUDONYM TO REFER TO
`SUSSMAN IN THE SUMMONS AND COMPLAINT . . . . . . . . . . . . 15
`CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
`
`
`II.
`
`i
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`

`

`
`
`TABLE OF AUTHORITIES
`
`PAGE(S)
`
`Cases
`974 Anderson LLC v. Davis,
`53 Misc 3d 1220(A), 2016 NY Slip Op 51765(U)
`(Civ Ct, Bronx County 2016) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
`Anonymous v. Lerner,
`124 A.D.3d 487, 998 N.Y.S.2d 619 (1st Dept 2015) . . . . . . . . . . . . . . . . . . . . . 10
`Bethpage Federal Credit Union v. Grant,
`178 A.D.3d 997 (2d Dept 2019) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13
`Christiansen v. City of New York,
`144 A.D.2d 328, 534 N.Y.S.2d 386 (2d Dept 1988) . . . . . . . . . . . . . . . . . . . . . 18
`Corbo v W. Side Travel,
`20 Misc 3d 126(A), 2008 NY Slip Op 51231(U)
`(App Term 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
`Gross v. BFH Co.,
`151 A.D.2d 452, 542 N.Y.S.2d 241 (2d Dept 2019) . . . . . . . . . . . . . . . . . . . . . 18
`Jampolskaya v. Ilona Genis, MD, P.C.,
`205 A.D.3d 785 (2d Dept 2022) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
`Lenox Rd. Utica Ave. Realty v. Spencer,
`184 Misc 2d 628 (App Term 2nd Jud Dept 2000) . . . . . . . . . . . . . . . . . . . . . . . . 16
`McDaniel v. Clarkstown Cent. Dist. No. 1,
`83 A.D.2d 624, 441 N.Y.S.2d 532 (2d Dept 1981) . . . . . . . . . . . . . . . . . . . . . . . 18
`Nationstar Mortgage., LLC v. Cohen,
`185 A.D.3d 1039 (2d Dept 2020) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
`Ober v. Rye Town Hilton,
`159 A.D.2d 16 (2d Dept 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
`Rodriguez v. Rodriguez,
`103 A.D.3d 117 (2d Dept 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
`Sanders v. 230FA, LLC,
`126 A.D.3d 876 (2d Dept 2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 17
`
`ii
`
`

`

`PAGE(S)
`
`Matter of Savitt,
`161 A.D.3d 109 (1st Dept 2018) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13
`Teachers Coll. v. Wolterding,
`77 Misc 2d 81, 351 N.Y.S.2d 587 (App Term, 1st Dept 1974) . . . . . . . . . . 16
`
`Statutes
`Child Victims Act (“CVA”) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
`
`Rules
`CPLR § 214-g . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
`CPLR § 305(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
`CPLR § 306-b . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
`CPLR § 308(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3, 8, 13
`CPLR § 317 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
`CPLR § 1024 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 15
`CPLR § 2101(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
`CPLR § 3211(a)(8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
`Regulations
`22 NYCRR § 202.72 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
`
`Other Authorities
`Vincent Alexander, Practice Commentaries, McKinney’s Cons Laws
`of NY, CPLR 1024 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
`
`iii
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`

`

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`PRELIMINARY STATEMENT
`
`On August 12, 2021, Plaintiff-Respondent commenced this action under the
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`pseudonym “John Doe” pursuant to New York’s Child Victims Act, 22 NYCRR §
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`202.72 in the Supreme Court, Kings County, under Kings County Index No.
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`520624/2021. While under the custody and control of Defendants Mesivtha Torah
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`School of Long Beach and the Rabbis in charge, Plaintiff- Respondent, a teenager,
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`was serially sexually abused and molested by a classmate, Defendant-Appellant
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`David Sussman (previously identified under the pseudonym “David Doe”), who also
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`was underage at the time of the assault. The serial assaults, molestation and bullying
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`caused him severe permanent emotional and physical injuries. Sussman was
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`Plaintiff-Respondent’s dormmate at Defendant Mesivtha Torah High School’s
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`residential facilities, where Defendant-Appellant Sussman (hereinafter “David
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`Sussman” or “Sussman”) regularly and repeatedly sexually abused, harassed, and
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`bullied Plaintiff-Respondent (hereinafter “Plaintiff” or “John Doe”) throughout
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`Plaintiff Doe’s tenth and eleventh grade years.
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`Sussman, who, despite being properly served, willfully failed and refused to
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`appear in the Lower Court action and waited until Plaintiff moved for a default
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`judgment to challenge service and assert procedural irregularities.
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`1
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`

`

`
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`By denying Plaintiff’s motion for a default, to the extent it directed Sussman
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`to answer, and denying Sussman’s cross-motion to dismiss, the Lower Court
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`correctly determined that the case demonstrated that Sussman’s Motion to Dismiss
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`based on improper service was insufficient and that any procedural irregularities
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`were cured. The Lower Court correctly found that: “defendant does not deny
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`receipt of the summons and complaint and his motion is based entirely upon
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`the original affidavit of service’s lack of information regarding the mailing of
`
`the summons and complaint, therefore movant cannot be prejudiced by the
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`amendment of the affidavit of service.”
`
`
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` Accordingly, it was proper for the Lower Court to deny Sussman’s motion to
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`dismiss pursuant to CPLR § 3211(a)(8), because the Lower Court did, indeed, have
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`jurisdiction over Sussman. Pursuant to CPLR § 306-b, because John Doe completed
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`service within 120 days of the filing of the summons and complaint by properly
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`mailing the complaint pursuant to CPLR § 308(2), no question of personal
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`jurisdiction remains. In so holding, the Lower Court soundly exercised its discretion
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`and did not overlook nor misapprehend the law or the facts. Further, the CVA’s
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`strong public policy mandate favors hearing this case on the merits.
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`It is respectfully submitted that the Lower Court’s denial of Defendant David
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`Sussman’s motion to dismiss was proper and should be affirmed.
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`2
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`COUNTER-STATEMENTS OF QUESTIONS PRESENTED
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`1.
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`To establish personal jurisdiction over a defendant pursuant to CPLR
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`308(2), the plaintiff must prove, by a preponderance of the credible evidence, that
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`the summons and complaint were served on a person of suitable age and discretion
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`and mailed to the defendant’s last known residence. Pursuant to CPLR § 305(c), a
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`court at any time, in its discretion and upon such terms as it deems just, may allow
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`any proof of service of a summons to be amended if a substantial right of a party
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`against whom the summons is issued is not prejudiced.
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`Here, on August 27, 2021, service of the Order to Show Cause, identifying
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`Sussman by his true name, and Summons and Complaint was effectuated upon
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`Sussman by Plaintiff’s process server. The sworn Affidavit of Service states that the
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`process server delivered the documents to Sussman’s wife at their home address.
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`According to the process server, Mrs. Sussman confirmed she was authorized to
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`accept service on Sussman’s behalf. That same day, Plaintiff’s process server mailed
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`a copy of the aforementioned documents to the same home address where Sussman’s
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`wife accepted service of the same. The Supreme Court exercised its discretion to
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`allow amendment of the Affidavit of Service to include the inadvertently omitted
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`language establishing satisfaction of the mailing requirement, which it may do at any
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`time. While Sussman criticizes the Lower Court’s discretion in permitting the
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`process server’s amended affidavit, Sussman inexplicably failed to submit an
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`3
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`

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`
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`affidavit of merit, nor did he or his wife deny service of the complaint or deny that
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`either of them received the subsequent mailing of the summons and complaint. What
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`is more, Sussman did not proffer any explanation as to why he chose not to answer,
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`or move to dismiss on the basis of improper service before Plaintiff moved for a
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`default or deny the allegations asserted against him. He instead feigns prejudice.
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`However, there is no prejudice as the Lower Court permitted Sussman to
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`answer as opposed to the Plaintiff whose look back window under the CVA had
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`closed and would thus sustain the utmost prejudice. While not explicitly stated, any
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`remaining contentions Sussman offered to excuse his default or claim of lack of
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`notice were deemed insufficient and the Lower Court properly ordered him to
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`answer the merits of Plaintiff’s claims.
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`Did the Supreme Court err in denying Sussman’s motion to dismiss the
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`complaint as against him for lack of personal jurisdiction? No.
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`2.
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`Sussman contends the Supreme Court erred in denying his motion to
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`dismiss based on Plaintiff’s use of a pseudonym to identify Sussman in the Summons
`
`and Complaint. The purpose of CPLR §1024 is to ensure a defendant is properly
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`identified and given notice of and an opportunity to defend in the proceeding.
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`Here, service of the Order to Show Cause, identifying Defendant Sussman by
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`his true name, “David Sussman,” and Summons and Complaint, identifying
`
`4
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`

`

`
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`Sussman as David “Doe,” was effectuated upon Sussman on August 27, 2021.
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`Again, Sussman does not deny service of the Order to Show Cause.
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`Did the Supreme Court err in denying Sussman’s motion to dismiss the
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`Complaint as against him on the grounds that it was jurisdictionally defective where:
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`(1) the Complaint described Sussman with sufficient particularity such that he knew
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`he was the intended defendant to be served; (2) where the accompanying Order to
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`Show Cause served upon him identified Sussman by his true name; and (3) where
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`Sussman failed to submit an affidavit of merit, nor did he or his wife deny service of
`
`the complaint or that either of them did not receive the subsequent mailing of the
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`complaint? No.
`
`
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`COUNTER-STATEMENTS OF FACTS
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`Plaintiff commenced this lawsuit under the Child Victims Act (the “CVA”),
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`CPLR § 214-g, on August 12, 2021, by filing the Summons and Complaint with the
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`Clerk of the Supreme Court, Kings County. [R. 12-30]. In his Complaint, Plaintiff
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`alleges, among other things, that while under the custody and control of the School
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`Defendants, he was a teenager who was serially sexually abused and molested by a
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`fellow classmate, Defendant David Sussman, identified in the Summons and
`
`Complaint by the pseudonym “David Doe.” Defendant contends, inter alia, that the
`
`5
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`

`

`
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`School Defendants breached their duty of supervision, control and care while the
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`minor Plaintiff was within their exclusive control, authority and care.
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`Plaintiff alleges that as a result of the serial rapes, molestations and bullying
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`perpetrated by David Sussman, he sustained severe permanent emotional and
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`physical injuries. [R. 12-14]. By virtue of those allegations, Sussman is a necessary
`
`party to this litigation.
`
`On August 12, 2021, Plaintiff filed a proposed order to show cause, supported
`
`by an affirmation and memorandum of law, seeking permission to proceed in the
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`action anonymously as a CVA victim. [R. 48-56]. Plaintiff’s Proposed Order to
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`Show Cause identified Defendant Sussman by his true name. [R. 48].
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`On or about August 13, 2021, Plaintiff filed an Amended Summons naming
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`the child sexual perpetrator “David Doe”. [R.32] Because David Doe was also a
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`juvenile at the time of the sexual assaults, Plaintiff sought to proceed anonymously
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`for the protection of both the Plaintiff and the juvenile perpetrator.
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`The School Defendants opposed the order to show cause and cross-moved to
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`compel Plaintiff to proceed under his true name or dismiss the case. The School
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`Defendants argued before the Honorable Justice Deborah Kaplan that because the
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`Complaint identifies Plaintiff as “John Doe,” the Lower Court lacked jurisdiction
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`under CPLR § 2101(c), and that without his true identity, the case mandated
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`6
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`

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`
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`dismissal as jurisdictionally defective, thereby depriving the School Defendants of
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`due process. Defendant David Sussman, although already served, did not appear.
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`In support of his application to remain anonymous, Plaintiff explained the
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`professional, personal, and economic repercussions he would face if his identity
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`were revealed as a matter of public record. Specifically, Plaintiff was a rabbi and
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`respected member of the Orthodox Jewish community and that if his identity were
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`revealed, he would be severely stigmatized and ostracized by his community. [R.
`
`89]. Plaintiff feared extreme reprisals and banishment from his community if the
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`information about the lawsuit became a matter of public record. Id
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`On December 23, 2021, the Lower Court, per the Honorable Justice Deborah
`
`A. Kaplan, entered a Decision and Order granting Plaintiff’s motion to proceed
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`anonymously and directed Plaintiff “to provide defendants with his name, date of
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`birth, social security number, parents and/or guardian’s names, current address, and
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`address at the time of the alleged abuse within 20 days of this court’s decision and
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`order” [R. 96-102]. In that order, the Lower Court denied the School Defendants’
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`cross-motion to compel Plaintiffs’ disclosure of his identification to the public at
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`large and denied the School Defendants’ motion to dismiss the case [R. 67]. The
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`School Defendants appealed that part of the order that granted Plaintiff permission
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`to proceed anonymously and denied Defendants’ cross-motion to dismiss under
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`7
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`

`
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`Docket Numbers 2022-00769 and 2022-00770, which appeal is currently pending
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`before this Honorable Court.
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`While the Supreme Court granted Plaintiff’s request to proceed anonymously
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`it declined to allow any of the Defendants, including Defendant Sussman, to remain
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`anonymous. [R. 96-102].
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`On September 16, 2022, Plaintiff moved for leave to enter a default judgment
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`against Defendant Sussman based on Sussman’s failure to appear or otherwise
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`answer the Complaint. [R. 8-11]. In support of his motion for a default judgment
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`against Defendant Sussman, Plaintiff submitted the affidavit of its process server,
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`sworn to August 30, 2021, which states that Sussman was served pursuant to CPLR
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`308(2) on August 27, 2021, by delivering the documents to Devora, Defendant’s
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`wife at his home address. [R. 34].
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`On September 28, 2022, Plaintiff moved to amend his motion for default
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`judgment against Sussman [R. 36-41] which included the affidavit of his process
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`server swearing that on August 30, 2021, the Order to Show Cause (which bore
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`Sussman’s name in the caption) and the Summons and Complaint were delivered to
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`Sussman’s wife at their home address. According to the Process Server, the woman
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`who accepted service of the Summons and Complaint confirmed she was his wife
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`and was authorized to accept service on Sussman’s behalf. In his Amended Affidavit
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`8
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`

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`
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`of service, the Process Server swore under oath that he had mailed the Summons and
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`Complaint to the same address on that same date. [R. 41].
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`In further support of Plaintiff’s motion for a default judgment against
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`Sussman, Plaintiff submitted an Affidavit of his process server, Joseph Masters
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`swearing that he followed his regular custom and practice as a New York licensed
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`process server for substituted service of a person deemed to be suitable and
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`authorized to accept service, in this case, Sussman’s wife, Devora by mailing a copy
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`of the Summons and Complaint by first class mail, that the language regarding same
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`was inadvertently omitted from the affidavit of service and requested the court to
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`accept his amended affidavit to evidence service was properly made and completed.
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`[R. 103-105].
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`On November 25, 2022, Defendant Sussman opposed Plaintiff’s Motion for a
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`Default and cross moved to dismiss the Amended Summons and Complaint as
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`against him for alleged procedural irregularities. [R. 44]. Sussman’s submission,
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`however, fatally failed to include an affidavit of merit, nor did he or his wife deny
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`service of the complaint or deny that either of them received the subsequent mailing
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`of the complaint. [R. 44-83].
`
`
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`Following submission of Plaintiff’s opposition to Sussman’s cross-motion,
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`the Supreme Court denied Sussman’s motion to dismiss and granted plaintiff’s
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`motion for a default, to the extent it directed Sussman to interpose an answer on the
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`9
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`
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`grounds that: “defendant does not deny receipt of the summons and complaint
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`and his motion is based entirely upon the original affidavit of service’s lack of
`
`information regarding the mailing of the summons and complaint, therefore
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`movant cannot be prejudiced by the amendment of the affidavit of service.” [R.
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`3-7].
`
`
`
`
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`This holding is the subject of this appeal.1
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`STANDARD OF REVIEW
`
`CPLR § 305(c) authorizes the court, in its discretion, to “allow any summons
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`or proof of service of a summons to be amended, if a substantial right of a party
`
`against whom the summons issued is not prejudiced.” Sanders v 230FA, LLC, 126
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`AD3d 876, 876 [2d Dept 2015]. Only where the Lower Court abuses its discretion
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`may the Appellate Division overturn the sound discretion of the lower court.
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`Anonymous v Lerner, 124 A.D.3d 487, 487, 998 N.Y.S.2d 619 [1st Dept 2015].
`
`Here, the Lower Court properly exercised its discretion in allowing amendment of
`
`
`1 On June 16, 2023, Sussman moved by way of order to show cause seeking leave to reargue the
`Supreme Court’s decision granting plaintiff’s motion for default judgment and denying Sussman’s
`cross-motion to dismiss and for a stay of all proceedings pending resolution of this instant appeal.
`(Supreme Court Docket; NYSCEF. Nos. 137-139). On July 12, 2023, the School Defendants
`opposed Sussman’s motion. (Supreme Court Docket; NYSCEF. Nos. 144-153). On July 13, 2023,
`plaintiff opposed Sussman’s motion. (Supreme Court Docket; NYSCEF. Nos. 154-163). The
`Supreme Court has not yet issued a decision on the motion to reargue but denied the stay of
`discovery which this court also denied on an emergency basis.
`
`10
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`
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`the summons and proof of service of summons. Thus, the Lower Court’s opinion
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`should be affirmed.
`
`ARGUMENT AND AUTHORITIES
`
`THE LOWER COURT DID NOT ERR WHEN IT REFUSED TO
`DISMISS THE CASE BASED ON SUSSMAN’S UNSUBSTANTIATED
`CLAIM THAT HE WAS NOT TIMELY SERVED.
`
`
`I.
`
`
`
`Sussman contends that Plaintiff’s alleged failure to timely serve him deprived
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`the Supreme Court of personal jurisdiction over him. [Br. 18]. While he criticizes
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`the Lower Court’s discretion in permitting the amended affidavit of service by the
`
`process server, he failed to submit an affidavit of merit, nor did he or his wife deny
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`service of the complaint or that either of them did not receive the subsequent mailing
`
`of the complaint.
`
`Despite the lower Court’s explicit and sound reasoning in denying Sussman’s
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`motion to dismiss, that “defendant does not deny receipt of the summons and
`
`complaint and his motion is based entirely upon the original affidavit of
`
`service’s lack of information regarding the mailing of the summons and
`
`complaint, therefore movant cannot be prejudiced by the amendment of the
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`affidavit of service,” Sussman has yet to dispute the same. [R. 6].
`
`Instead, Sussman, as the alleged abuser in this CVA case, attempts to avoid
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`defending the merits of Plaintiff’s claims by asserting meritless procedural
`
`11
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`
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`irregularities which the Lower Court correctly determined could be amended or
`
`excused without prejudicing Sussman. [R. 6]. Specifically, Sussman fails to proffer
`
`any legal authority to support his baseless contention that the alleged “jurisdictional
`
`deficiency, as a matter of law, cannot be cured by an amended affidavit of service.”
`
`[Br. 2-3]. Not so.
`
`To the contrary, and as correctly held by the Lower Court, pursuant to CPLR
`
`§ 305 (c), a court, “[a]t any time, in its discretion and upon such terms as it
`
`deems just, . . . may allow any . . . proof of service of a summons to be amended,
`
`if a substantial right of a party against whom the summons [is] issued is not
`
`prejudiced.” Jampolskaya v. Ilona Genis, MD, P.C., 205 A.D.3d 785, 787 (2d Dep’t
`
`2022). [R. 6]. Because Sussman fails to show how the Lower Court abused its
`
`discretion in allowing amendment of the affidavit of service, which it may do at any
`
`time within its discretion, the Lower Court’s order should be affirmed.
`
`Further, “[a] process server's affidavit of service constitutes prima facie
`
`evidence of proper service and, therefore, gives rise to a presumption of proper
`
`service” Bethpage Federal Credit Union v Grant, 178 AD3d 997, 997 [2d Dept
`
`2019] (citing U.S. Bank N.A. v. Ramos, 153 A.D.3d 882, 884, 60 N.Y.S.3d 345;
`
`Wells Fargo Bank, NA v. Chaplin, 65 A.D.3d 588, 589, 884 N.Y.S.2d 254).
`
`In Matter of Savitt, 161 AD3d 109, 115 [1st Dept 2018], the First Department
`
`held that “respondent [] failed to rebut the Committee's evidence of proper service.”
`
`12
`
`

`

`
`
`Id. Savitt further held that, “[j]urisdiction was properly attained over respondent
`
`where the petition of charges was delivered to “Connie” at respondent's actual place
`
`of business and then mailed the next day to respondent's office, and any defects in
`
`the affidavit of service or the failure to timely file said affidavits with this Court
`
`are irregularities that can be properly cured by deeming it filed nunc pro tunc.
`
`Id. (citing Bell v. Bell, Kalnick, Klee & Green, 246 A.D.2d at 443, 668 N.Y.S.2d
`
`177; Air Conditioning Training Corp v. Pirrote, 270 App.Div. 391, 393, 60
`
`N.Y.S.2d 35 [1st Dept. 1946] [there is a difference between service and proof of
`
`service with the fact of proper service, which confers jurisdiction]) (emphasis
`
`added).
`
`In Bethpage, this Court held that the Lower Court properly exercised its
`
`discretion in denying defendant’s motion to vacate the default judgment entered
`
`against him for lack of personal jurisdiction based upon alleged invalidity of service,
`
`where, as here, “the amended affidavit of service reflects that the defendant was
`
`served pursuant to CPLR 308(2) on October 29, 2011, by delivery of the summons
`
`and complaint to a female co-resident of the mortgaged premises, who was a person
`
`of suitable age and discretion and whose physical description was set forth in detail,
`
`followed by the required mailing to the address of the mortgaged premises.” 178
`
`AD3d 997, 998 [2d Dept 2019].
`
`13
`
`

`

`
`
`In so holding, Bethpage noted, “[t]he mere denial of receipt of the summons
`
`and complaint is ... insufficient to establish lack of actual notice for the purpose of
`
`CPLR 317” Id. (citing Wassertheil v. Elburg, LLC, 94 A.D.3d at 754, 941 N.Y.S.2d
`
`679 [internal quotation marks omitted]; Bank of N.Y. v. Samuels, 107 A.D.3d 653,
`
`654, 968 N.Y.S.2d 93). Accordingly, Bethpage held that, “the defendant's contention
`
`that his estranged wife deliberately concealed the summons and complaint from him
`
`is speculative and without sufficient evidentiary support” and that “[i]n light of the
`
`foregoing, the Supreme Court providently exercised its discretion in denying that
`
`branch of the defendant's motion which was pursuant to CPLR 317” Id.
`
`Similarly, in Nationstar Mortgage, LLC v Cohen, 185 AD3d 1039, 1041 [2d
`
`Dept 2020], this Court held that, “[t]he defendants' conclusory and unsubstantiated
`
`submissions did not rebut the sworn allegation that a person fitting the physical
`
`description of Simone Cohen was present at the residence at the time and accepted
`
`service” and that “Avi Cohen did not deny that he received the papers in the mail
`
`and thus did not overcome the inference of proper mailing that arose from the
`
`affidavit of service.” Id.
`
`Here, unlike Bethpage, where the defendant alleged that he did not receive the
`
`summons and complaint, and the appellate court affirmed the lower court’s decision
`
`denying his motion to vacate the default judgment as a result of defendant’s failure
`
`to rebut the legitimacy of the amended affidavit of service, Sussman does not deny
`
`14
`
`

`

`
`
`receipt of the summons and complaint. Notably, Sussman failed to submit an
`
`affidavit of merit, nor did he or his wife deny service of the complaint or assert that
`
`either one of them did not receive the subsequent mailing of the complaint. See
`
`Rodriguez v Rodriguez, 103 AD3d 117, 124-25 [2d Dept 2012] (“since Rodriguez
`
`did not submit an affidavit from his wife, to whom the summons and complaint were
`
`delivered, Rodriguez failed to rebut the presumption of proper service”). Therefore,
`
`Sussman failed to rebut the presumption that service was properly effectuated.
`
`Accordingly, the Supreme Court has personal jurisdiction over Sussman, and
`
`the decision of the Lower Court should be affirmed.
`
`II. THE LOWER COURT DID NOT ERR WHEN IT REFUSED TO
`DISMISS THE CASE BASED ON SUSSMAN’S ARGUMENT THAT IT
`DID NOT HAVE PERSONAL JURISDICTION OVER HIM BECAUSE
`OF PLAINTIFF’S USE OF A PSEUDONYM TO REFER TO
`SUSSMAN IN THE SUMMONS AND COMPLAINT.
`
`
`
`Sussman’s contention that the Lower Court should have dismissed the case
`
`against him, pursuant to CPLR §1024, because Plaintiff referred to Defendant David
`
`Sussman as David “Doe” in the Summons and Complaint is without merit. “The
`
`purpose of CPLR 1024 is to ensure a defendant is properly identified and given
`
`notice of and an opportunity to defend in the proceeding.” Vincent Alexander,
`
`Practice Commentaries, McKinney's Cons Laws of NY, CPLR 1024.
`
`15
`
`

`

`
`
`For the purpose of obtaining jurisdiction, it is sufficient if the summons or
`
`notice of petition adequately describes the respondent in a manner that he would
`
`have known from the description that he was the party intended. Lenox Rd. Utica
`
`Ave. Realty v Spencer, 184 Misc 2d 628, 629 (App Term 2nd Jud Dep't 2000). See
`
`also 974 Anderson LLC v Davis, 53 Misc 3d 1220[A], 2016 NY Slip Op 51765[U],
`
`*3 (Civ Ct, Bronx County 2016) (citing Salerno v Holden, 258 AD 50, 15 NYS2d
`
`549 [1st Dep't 1939], aff'd, 284 NY 759, 31 N.E.2d 513 [1940]).
`
`This Court in Lenox Rd, supra, reversed the order of the Lower Court which
`
`granted tenant's motion to vacate a default judgment finding the tenant's challenge
`
`to the court's jurisdiction to be without merit where the caption identified the tenant
`
`as "John" Spencer rather than "Andy" Spencer. Specifically, this Court noted that
`
`“the notice of petition that landlord served, which identified tenant as ‘John’ Spencer
`
`at "783 Lenox Road, Brooklyn, New York 11203--Apt: B 12- 1/2,’ met this standard,
`
`and tenant could not have been confused as to who was meant.” Id. (citing Teachers
`
`College v Wolterding, 77 Misc 2d 81).
`
`Similarly, in Teachers College. v. Wolterding, 77 Misc 2d 81, 351 NYS2d 587
`
`[1st Dept 1974], the First Department allowed amendment of the undertenant's name
`
`where the landlord knew the name of the subtenant of the named respondent and
`
`designated him as "John Doe," holding that “[u]nder the circumstances…the
`
`defect in the caption of the proceeding … was amendable nunc pro tunc." Id.
`
`16
`
`

`

`
`
`(emphasis added). See also Corbo v West Side Travel, 20 Misc 3d 126[A], 126A,
`
`2008 NY Slip Op 51231[U], *2 (App Term 2008) (“The court below properly found
`
`that the error in tenant's name was de minimis and did not cause any confusion as to
`
`the party being sued”).
`
`Further, CPLR §305(c) authorizes the court, in its discretion, to “allow any
`
`summons or proof of service of a summons to be amended, if a substantial right of
`
`a party against whom the summons issued is not prejudiced.” Sanders v 230FA, LLC,
`
`126 AD3d 876, 876 [2d Dept 2015]. (emphasis added). “This provision, and its
`
`predecessors, has been consistently interpreted as allowing a misnomer in the
`
`description of a party defendant to be cured by amendment, even after the Statute of
`
`Limitations has run” Ober v Rye Town Hilton, 159 AD2d 16, 19-20 [2d Dept 1990].
`
`“Such amendments are permitted where the correct party defendant has been served
`
`with process, but under a misnomer, and where the misnomer could not possibly
`
`have misled the defendant concerning who it was that the plaintiff was in fact
`
`seeking to sue” Sanders v 230FA, LLC, 126 AD3d 876, 876 [2d Dept 2015] (citing
`
`Creative Cabinet Corp. of Am. v. Future Visions Computer Store, 140 A.D.2d 483,
`
`484–485, 528 N.Y.S.2d 596; Smith v. Garo Enters., Inc., 60 A.D.3d 751, 752, 875
`
`N.Y.S.2d 167. Such is the case here.
`
`In Ober v Rye Town Hilton, 159 AD2d 16, 21 [2d Dept 1990], this Court held
`
`that the motion to dismiss the complaint made by Hilton should have been denied.
`
`17
`
`

`

`
`
`In so holding, the Court reasoned, “[w]hile it is true that a party may be added to a
`
`pending action only with leave of court (CPLR 305[a]; 1003; Gross v. BFH Co., 151
`
`A.D.2d 452, 542 N.Y.S.2d 241; Christiansen v. City of New York, 144 A.D.2d 328,
`
`534 N.Y.S.2d 386; cf., McDaniel v. Clarkstown Cent. Dist. No. 1, 83 A.D.2d 624,
`
`441 N.Y.S.2d 532), [ ] the evidence contained in the record leads to the conclusion
`
`that this is not a case of a new corporate defendant being “added”, but rather, it is a
`
`case of the original, albeit misnamed, corporate defendant being retained in the
`
`action under its proper name, by virtue of an amendment granted pursuant to CPLR
`
`305(c). It is the name of a party, rather than the party itself, which has been changed.”
`
`Id.
`
`As is the case here, the summons and complaint filed on August 12, 2021,
`
`identifying David Sussman as

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